Opinion by
Mr. Justice Moschzisker,The Atlantic Refining Company brought this action against Frederick Sylvester to recover the purchase price of a piece of real estate. The contract sued upon is dated October 7, 1908; it is provided therein that the plaintiff agrees to sell and the defendant to purchase a certain tract of land in the borough of South Chester; the title to be “clear of encumbrance (except as to opened or unopened streets), and free from restrictions;” the deed to be executed “to the said Frederick Sylvester, agent, or to his principal,” and “settlement to be made within sixty days.” It is further provided: “This agreement is made and entered into by the said Frederick Sylvester, agent, under and subject to the approval of his action by his principal (within fourteen days from this date) signified by his written indorsement hereon, and the said Frederick Sylvester shall not be held responsible under this agreement in case of the refusal of his principal to affirm his action.”
The words within the parentheses did not appear in *495the contract as originally drawn and signed by the defendant; they were inserted by the plaintiff. This was not denied; but the plaintiff contended that the contract as altered was afterwards impliedly affirmed by the defendant and expressly approved within the fourteen days by his principal, Mr. Baker, acting through an attorney in fact, Mr. Stoney; or, at the least, that the actions of the defendant and his principal in relation to the contract were sufficient from which to find a waiver of the provision as to the incumbrances, so far as the streets were concerned. The defendant denied both of these contentions and asserted that he had never agreed to the exception in regard to the streets; that his principal had always said that the property would be worthless to him with the threat of the streets hanging over it, and had insisted that it must be delivered free of such incumbrance; and that the plaintiff had been so informed. The defendant likewise denied any individual liability under the contract. The learned trial judge gave binding instructions in his favor, which were sustained by the court below, and the plaintiff has appealed.
The suit was upon a written contract in which the plaintiff had made material alterations after its execution by the defendant. The latter never expressly assented to the changes or affirmed the contract as modified; and the question of such modifications does not appear to have gone beyond the negotiation stage. Taking the document as drawn before the interlineations, we have a written contract containing an express provision that the property must be clear of incumbrance, together with the fact that there were then four duly ordained streets liable to be opened over the tract of land in question, and the further fact that the authorities, on November 19, 1908, had “absolutely declined” to remove these streets from the municipal plan. Under these circumstances there could be no recovery on the contract. “The ordained street, though unopened, was an encumbrance upon the lot relieving the appellee from his agreement to purchase: ” *496Graybill v. Ruhl, 225 Pa. 417; Evans v. Taylor, 177 Pa. 286.
But the question remains, Was there error in refusing the additional evidence proffered by the plaintiff? Had it all been admitted, yet in view of the positive assertion by the defendant, a witness for the plaintiff, that he had never assented to the interlineations, and the absolute orders by Mr. Baker that the title must be “clear and unrestricted” and that the defendant before delivering his principal’s approval was to satisfy himself of the land’s being clear of the proposed streets, there would not have been sufficient proofs to justify the.inference, or to sustain a finding, that the defendant or his principal had either waived any part of the requirement in respect to incumbrances or affirmed the contract as modified. Particularly is this so, when we consider that the approval of Mr. Baker was never delivered, and that the so-called approval by his attorney in fact was an especially restricted one, not to be delivered to the plaintiff unless assented to by Mr. Baker, which assent appears to have been withheld because of the presence of the streets. All of the correspondence admitted and offered was consistent with the fact that the defendant’s principal always insisted upon the property’s being free of the incumbrance of these streets; for, after Mr. Baker’s prompt and repeated orders to that effect, and their communication to the plaintiff, it was not necessary to reiterate his stand in each subsequent letter.
Since it is impossible to deliver a title clear of the plotted streets, the plaintiff is out of court; hence it would serve no useful purpose to discuss or determine the other questions so ably presented by counsel.
We find no reversible error upon the record; the assignments are all dismissed, and the judgment is affirmed.